Whistleblowers, Journalists and the Public's Right to Know

Edward Snowden leaked top secret details about U.S. National
Security Agency surveillance programs.

By Cecil Rosner
Managing Editor and head of Investigative Unit, CBC Manitoba

Blowing
the whistle on illegal or immoral behaviour has never been an easy task.

It
usually results in loss of income, possible prosecution, and in extreme cases,
it can be deadly. It's safe to say that a whistleblower's life is never quite
the same after that fateful decision to speak out publicly.

Just
ask Edward Snowden, the NSA leaker who is currently scrambling to find a
country willing to protect him from prosecution in the U.S. Snowden, like
Julian Assange, Bradley Manning, Jeffrey Wigand, Daniel Ellsberg and dozens of others
like them, is finding out the hard way that shining a light in dark places is
not always to everyone's liking.

Journalists
have a particular interest in whistleblowers, because they are often
instrumental in uncovering stories of great public interest. The CBC and most
other media outlets have relied repeatedly on whistleblowers to gain insight
into how government, industry and other powerful interests conduct business.
Sometimes those whistleblowers wish to remain anonymous, and the media does its
best to protect their identities.

At
other times, the identities are public from the outset, and that gives rise to
another common phenomenon. Not only do the whistleblowers come under attack by
the people whose secrets are being revealed, but so do the journalists who
report the stories.

Glenn
Greenwald, the Guardian journalist who broke the Snowden stories, has been
accused in some quarters of "aiding and abetting" the former intelligence
employee. Some U.S. politicians have suggested he should be prosecuted
alongside Snowden. Other commentators have questioned whether Greenwald is
really a reporter, suggesting he is an activist or at best a "blogger." A
concerted campaign seems to be underway to spread innuendo about aspects of
Greenwald's past, with the suggestion that such revelations should somehow call
his journalism into question.

"When I
made the choice to report aggressively on top-secret NSA programs, I knew that
I would inevitably be the target of all sorts of personal attacks and smears,"
Greenwald wrote in the Guardian. "You don't challenge the most powerful state
on earth and expect to do so without being attacked."

It is
not the first time this has happened. There are many Canadian examples of
reporters facing accusations of bias, lawsuits and court orders to disclose
confidential source information, all because they reported on what a
whistleblower had to say.

But one
of the most instructive examples is that of Daniel Ellsberg, a former Pentagon
and state department employee who leaked an internal government analysis of the
Vietnam War called the Pentagon Papers in 1971. Ellsberg was subjected to the
familiar litany of threats and smears, and U.S. intelligence officers even
staged an illegal break-in at his psychiatrist's office to find material to
discredit him. He was accused of theft, espionage, and endangering U.S.
security interests. Sound familiar?

Ellsberg
gave the papers to the New York Times, and lawyers for the Times advised
against publication. But the newspaper published the story amid risks of
injunctions, lawsuits and dire threats. The newspaper's right to proceed was
eventually upheld by the U.S. Supreme Court. Here is what Supreme Court Justice
Hugo Black said:

"Only a free and unrestrained press can effectively expose deception in
government. And paramount among the responsibilities of a free press is the
duty to prevent any part of the government from deceiving the people, and
sending them off to distant lands to die of foreign fevers and foreign shot and
shell. ... The government's power to censor the press was abolished so that the
press would remain forever free to censure the government. The press was
protected so that it could bare the secrets of government and inform the
people."

Ellsberg,
by the way, eventually had all charges against him dismissed. And it's
difficult to find anyone today who thinks the disclosure of the Pentagon Papers
was a bad idea.

Anyone
who has seen the movie The Insider also knows about the case of Jeffrey Wigand,
who blew the whistle on big tobacco's practice of increasing nicotine content
in cigarettes. In reporting the story, CBS was also accused of aiding and
abetting Wigand's purportedly illegal breach of contract, and faced the
prospect of a crippling lawsuit if it proceeded.

What
should Canadian journalists learn from the cases of Snowden, Ellsberg, Wigand
and the journalists who covered their stories? It would be unfortunate if they
concluded such coverage was somehow improper or too dangerous to risk. That
attitude would not serve the cause of journalism, or the public's right to
know, terribly well.

Whistleblowers
who speak out must carefully assess the risks. They should know the
consequences of their actions might bring job dismissal, or government
persecution, or jail. Often, as Ellsberg did, they hope that public opinion
will judge their act of defiance so important as to trump any contractual or
legal bounds they might have overstepped.

As for
the journalists who deal with these whistleblowers, they need to consider that
their primary obligation is to their audiences, who are interested in the
inner-workings of powerful institutions that hold sway over their lives. Even
if a whistleblower is breaking a contract, or breaking a law, it need not
disqualify the importance of reporting the information.

In a
2010 ruling, Supreme Court of Canada Justice Louis LeBel commented directly on
this type of issue.

LeBel
noted that "in order to bring to light stories of broader public importance,
sources willing to act as whistleblowers and bring these stories forward may
often be required to breach legal obligations in the process. History is
riddled with examples. In my view, it would also be a dramatic interference
with the work and operations of the news media to require a journalist, at the
risk of having a publication ban imposed, to ensure that the source is not
providing the information in breach of any legal obligations. A journalist is
under no obligation to act as legal adviser to his or her sources of
information."

Even
though many levels of government around the world have enacted whistleblower
protection legislation, the climate for people who are considering blowing the
whistle is decidedly chilly these days. Journalists might also be thinking
twice about what they can safely report.

The
criminalization of whistleblowing is unlikely to result in a more open and
transparent society. In the end, it's the public that is usually in the best
position to judge whether we should punish or reward the people who are
stepping forward to shine the light. And the only way the public can make that
judgment is by being armed with all the available facts.

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